[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 23. Election of Members]
[From the U.S. Government Publishing Office, www.gpo.gov]
CHAPTER 23
ELECTION OF MEMBERS
HOUSE PRACTICE
Sec. 1. In General
Sec. 2. Campaign Practices
Sec. 3. Certificates of Election
Sec. 4. Resignations; Deaths; Filling Vacancies
Research References
U.S. Const. art. I, Sec. 5, cl. 1
1 Hinds Sec. Sec. 277-633
6 Cannon Sec. Sec. 38-89
Deschler Ch 8
Sec. 1 . In General
Generally
Although Congress has enacted extensive legislation to protect the
right to vote and to secure the voting process, the actual mechanism
for conducting and holding congressional elections has been left
largely to the states. Deschler Ch 8 Sec. Sec. 5, 7. Under article I,
section 5, clause 1 of the Constitution, however, the ultimate
validity of elections rests on determinations by the House and Senate
as final judges of the elections and returns of their respective
Members. Deschler Ch 8 Sec. 5. Therefore, where the conduct of
election officials or of candidates and their agents constitutes fraud
or illegal control of election machinery, the House or Senate may void
an election and refuse to administer the oath to a Member-elect.
Deschler Ch 8 Sec. 7; see Deschler Ch 8 for complete treatment of
elections and election campaigns.
Apportionment and Reapportionment
Following a brief increase to 437 seats after the admission of
Alaska and Hawaii to statehood, the total membership of the House has
remained fixed by statute at 435 seats. Manual Sec. 227. By law, these
435 seats are automatically apportioned among the states according to
each decennial census. 2 USC Sec. 2a.
Under this law, a statistical model known as the ``method of equal
proportions'' is used to determine the number of Representatives to
which each state is entitled. Although other methods for apportioning
House seats may be permitted, the ``equal proportions'' method chosen
by Congress has been upheld under the Constitution, as it was plainly
intended to reach as close as practicable the goal of ``one person,
one vote.'' Massachusetts v. Mosbacher, 785 F. Supp. 230 (D. Mass.
1992), rev'd on other grounds, Franklin v. Massachusetts, 505 U.S. 788
(1992). The courts also have recently upheld under Federal law and the
Constitution a counting methodology used by the Census Bureau in a
decennial census. This method, known as ``imputation,'' was held to be
different than ``sampling,'' a method prohibited under section 195 of
title 13, United States Code. Utah v. Evans, 536 U.S. 452 (2002). The
method of apportioning the seats in the House is vested exclusively in
Congress, and neither States nor courts may direct greater or lesser
representation than that allocated by statute. Deschler Ch 8 Sec. 1.
The states create their own congressional districts, which must be
redrawn after reapportionment so that each district is as equally
populated as practicable. Manual Sec. 229.
Section 2a of title 2, United States Code, mandates the manner in
which a state must conduct an election after any apportionment but
before the state is redistricted. The authority under section 2a(c) of
title 2 for a state to retain an at-large seat pending its
redistricting should be read in light of section 2c of title 2, which
requires all states entitled to more than one seat to elect
representatives only from single-Member districts. Manual Sec. 227.
Reapportionment proposals have been considered in the House, but
have no privileged status under the Constitution and cannot interrupt
the regular proceedings of the House. Deschler Ch 8 Sec. 2.
Reapportionment legislation also has been considered in the Committee
of the Whole. Deschler Ch 8 Sec. 2.5. Under clause 1(l) of rule X,
proposals relating to apportionment are within the jurisdiction of the
Committee on the Judiciary.
Sec. 2 . Campaign Practices
The power of Congress to regulate the election process extends to
the regulation of campaign practices. Deschler Ch 8 Sec. 10. The
Federal Election Campaign Act established a new and comprehensive code
for campaign practices and expenditures, and contains provisions for
investigations and enforcement. 52 USC Sec. 30101 et seq.
The Federal Election Commission is the agency empowered with
primary jurisdiction over the administration, interpretation, and
civil enforcement of the Federal Election Campaign Act. Federal
Election Comm'n v. American Int'l. Demographic Services, Inc., 629 F.
Supp. 317 (E.D. Va. 1986). However, the House itself has the power to
judge elections and to determine whether a candidate was improperly
elected to a seat. If violations of the election campaign statutes are
so extensive as to render an election void, the House may deny the
right to a seat. Deschler Ch 8 Sec. 12.
Under clause 1(k) of rule X, the Committee on House Administration
has jurisdiction over measures relating to the election of the
President, Vice President, or Members of Congress and over measures
relating to the raising, reporting, or use of campaign contributions
for House candidates. Investigations of specific elections or election
practices usually are undertaken by that committee. See, e.g., 105-2,
H. Res. 355, Feb. 12, 1998, p 453. Investigations of Members'
elections may be conducted under the statutory election-contest
procedures or offered on the floor of the House as questions of
privilege. Manual Sec. 701; see Election Contests and Disputes.
Formerly, investigations were undertaken by select committees created
to review election campaigns and proceedings, which were created by
privileged resolutions reported from the Committee on Rules. Deschler
Ch 15 Sec. 1.3. Under the modern practice, investigations are
undertaken by the Committee on House Administration.
A Member's resignation during an investigation effectively
terminates the investigation, because the Committee on House
Administration has no further jurisdiction in the matter thereafter.
95-1, May 4, 1977, p 13391.
Under clause 5 of rule XIII, a resolution reported from the
Committee on House Administration relative to the right of a Member to
a seat is considered as privileged. Deschler Ch 8 Sec. 13.5.
Sec. 3 . Certificates of Election
Certificates of election are issued by each state after
congressional elections have been conducted and the results tabulated.
The certificates, also termed ``credentials,'' are sent to the Clerk
of the House for use in composing the Clerk's roll. Although the
certificate is not essential to the administration of the oath, any
Member or Member-elect has the right to object thereto, by delivering
a challenge either to the validity of the election or to the validity
of the certificate itself. Deschler Ch 8 Sec. 15. For a discussion of
challenging the administration of the oath, see Oaths.
The House (and not the Speaker or other official) determines
whether a Member-elect may be sworn in after an election certificate
has been challenged. If a challenge has been directed to a mere
irregularity in the form of the certificate, the House will ordinarily
seat the Member-elect and declare such individual finally entitled to
the seat. Deschler Ch 8 Sec. 17.1. However, if a certificate is
challenged through an election contest or by an allegation of election
irregularities, the House may authorize the Member-elect to be sworn
but provide that the question of the final right to the seat be
referred to committee. That procedure often is followed where a
certificate is on file in order not to deprive a state of
representation in the House in the event of protracted proceedings.
Deschler Ch 8 Sec. 16.4. Another procedural option that may be pursued
by the House is to declare that neither candidate be sworn and that
the question of prima facie and final right to the seat be referred to
committee. Manual Sec. 204.
A circumstance which may require the nullification of a
certificate is the intervening death or disappearance of the Member-
elect named therein. Deschler Ch 2 Sec. Sec. 4.8, 4.9.
The House does not always require a certificate in seating a
Member-elect. If such individual appears without a certificate but the
election is uncontested and unquestioned, the House may authorize such
Member-elect to be sworn by unanimous consent. Manual Sec. 204. A
photographic copy of the original certificate has been accepted
without invoking the unanimous-consent procedure. 106-1, June 8, 1999,
p 3773. In some cases where a certificate is delayed, the state
represented will deliver informal communications to the House
attesting to the validity of the election of the Member-elect. The
House may accept such communications by unanimous consent in the
absence of a certificate. Deschler Ch 2 Sec. 3.3. Even where a Member-
elect arrives without a certificate and the election of such
individual is disputed, the House may by resolution authorize the
swearing of such Member-elect. Deschler Ch 8 Sec. 17.2.
Sec. 4 . Resignations; Deaths; Filling Vacancies
A Member properly submits a resignation to an official designated
by state law and simply informs the House of such action, the latter
communication being satisfactory evidence of the resignation. Manual
Sec. 19; 1 Hinds Sec. 567; Deschler-Brown-Johnson Ch 37 Sec. 3. A
Member may notify the Speaker and the relevant state official in one
Congress of an intention not to take a seat in the following Congress
to which that Member was elected. See, e.g., 114-1, Jan. 6, 2015, p__.
Where a vacancy arises in the House by death, resignation,
declination, or action of the House, the vacancy must be officially
declared in order that a special election may be held. Deschler-Brown-
Johnson Ch 38 Sec. 2. Usually, the state executive declares the
vacancy to exist, particularly in cases of death, declination, or
resignation. Deschler Ch 8 Sec. 9. The state executive then issues a
writ of election to fill the vacancy. U.S. Const. art. I, Sec. 2, cl.
4. If a Governor does not recognize the existence of a vacancy, such
as in the case of a presumed death not susceptible of proof, the House
itself may initiate the action to have the seat declared vacant.
Deschler Ch 8 Sec. 9.5. Such a declaration is proper where independent
House action has created a vacancy by expulsion or exclusion of a
Member. Deschler Ch 8 Sec. 9. In such cases, the House, by privileged
resolution, directs the Speaker to notify the state executive. Manual
Sec. 22. The state executive also is notified where the Member
purports to resign directly to the Speaker, rather than to the
relevant state official of such Member's state as is customary.
Deschler-Brown-Johnson Ch 37 Sec. 3.2.
Under clause 5(d) of rule XX, in the case of the death of a
Member, the Speaker may lay before the House such documentation from
Federal, state, or local officials deemed pertinent. Deschler-Brown-
Johnson Ch 38 Sec. 5. The Chair may also announce to the House the
death of a Member on the basis of common fame. 114-2, July 7, 2016,
p__.
A resolution declaring a seat vacant is used where a Member-elect
is unable to take the oath or declines the office due to an
incapacitating illness. Manual Sec. 22; Deschler-Brown-Johnson Ch 38
Sec. 2.17. In one instance, a letter to the Speaker from the attending
physician was inserted in the Congressional Record to document the
physical condition of the Member-elect. The letter stated that the
Member-elect was in a coma and would be unable to take the oath.
Manual Sec. 205. The House, by declaring the seat vacant by majority
vote, was in effect judging a constitutional qualification of the
Member; that is, the requirement that she take the oath. The
resolution was not tantamount to an expulsion, which requires a two-
thirds vote to adopt.
The House has adopted a resolution expressing the sense of the
House that each state should examine its existing statutes, practices,
and procedures governing special elections so that, in the event of a
catastrophe, vacancies in the House may be filled in a timely fashion.
107-2, H. Res. 559, Oct. 2, 2002, p 18919. See also Deschler-Brown-
Johnson Ch 38 Sec. 5.